Ryan v. State

• Decision Date: 04 May 2010
• Docket Number: 1 CA-CV 08-0761
• Parties: MARK A. RYAN, for and on behalf of himself, and as next friend for HESTER and HANNAH RYAN, minors; and MARGARET LEE RYAN; ANTHONY J. FOSTER; and VIRGINIA FOSTER and RICK PATTEN, his parents, Plaintiffs-Appellants, v. STATE OF ARIZONA, Defendant-Appellee.
• Court: Arizona Court of Appeals

MARK A. RYAN, for and on behalfof himself, and as next friendfor HESTER and HANNAH RYAN, minors; and MARGARET LEE RYAN;ANTHONY J. FOSTER; and VIRGINIAFOSTER and RICK PATTEN, his parents, Plaintiffs-Appellants,

v.STATE OF ARIZONA, Defendant-Appellee.

1 CA-CV 08-0761

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT C

Filed: May 4, 2010

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

SeeAriz. R. Supreme Court111(c);ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication-Rule 28,Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

CauseNo. CV 2006-008189

The Honorable F. Pendleton Gaines, III, Judge

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

Treon, Aguirre, Newman & Norris P.A.

By Richard T. Treon

Meghann L. St. Thomas

Attorneys for Plaintiffs-Appellants

Terry Goddard, Attorney General

By Daniel P. Schaack, Assistant Attorney General

Attorneys for Defendant-Appellee

KESSLER, Judge

¶1Plaintiffs-AppellantsMark A. Ryan, Hester Ryan,

Hannah Ryan, Margaret Lee Ryan and Anthony J. Foster, Virginia Foster, and Rick Patten appeal the trial court's summary judgment in favor of Defendant-Appellee State of Arizona on their claims for violation of the Administrative Procedure Act, false imprisonment, and violation of their constitutional rights.For the following reasons, we affirm the court's summary judgment for the State on Plaintiffs' statutory and constitutional claims.We also affirm the summary judgment on Plaintiffs' false imprisonment claim in part, but reverse in part and remand for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL BACKGROUND

¶2On March 1, 1999, Mark Ryan was sentenced to a four-year prison term for negligent homicide.On June 6, 1999, Anthony Foster was sentenced to two concurrent five-year prison terms for aggravated assault.

¶3The Board of Executive Clemency("Board") subsequently unanimously recommended commutation of both sentences.The Board recommended that Ryan's sentence be commuted to one and one-half years, and that Foster's sentence be reduced to two and three-quarters years.Both recommendations were made pursuantto Arizona Revised Statutes("A.R.S.")section 31-402(D)(Supp. 2009), which provides that a unanimous Board recommendation "that is not acted on by the governor within ninety days after the [B]oard submits its recommendation to the governor automatically becomes effective."

¶4Along with its recommendation, the Board transmitted to the governor a form letter for the governor to return indicating his or her decision on the Board's recommendation (the "Form Letter").The Form Letter, which was created by the Board's staff, stated: "The following application for executive clemency has been reviewed by the Governor.Documents submitted to our office for our review are being returned to you under this cover and the Governor's decision is as follows[.]"The Form Letter then contained a place for the governor to indicate his or her decision regarding the recommended commutation and a place for the governor or his or her representative to sign and date the form.The Form Letter did not contain a space for the secretary of state's attestation.

¶5Governor Hull received the Board's recommendation regarding Ryan's sentence on December 1, 1999.On February 8, 2000, she signed, dated and returned the Form Letter to the Board, indicating that she denied the Board's recommended commutation.The governor received the Board's recommendation regarding Foster's sentence on March 7, 2000.On May 10, 2000, she signed, dated and returned the Form Letter to the Board, indicating that she denied the Board's recommended commutation.Neither form indicated that the governor had forwarded it to the secretary of state for attestation and recording in the State's public records.

¶6In October 2000, at the governor's request, the Board returned to her all of the Form Letters denying unanimous commutation recommendations, including those for Ryan and Foster.Thereafter, the governor resubmitted the forms, to which the secretary of state's signature of attestation had been added.

¶7On October 18, 2000, Ryan petitioned for post-conviction relief in Pima County Superior Court.He argued the secretary of state had not timely attested the governor's signature on the Form Letter, as required for an official act, and therefore that his commutation became effective pursuant to A.R.S. § 31-402 on the ninety-first day after the governor received the Board's recommendation.

¶8On November 2, 2000, this Court published McDonald v. Thomas, 198 Ariz. 590, 12 P.3d 1194(App.2000)("McDonald I"), vacated202 Ariz. 35, 40 P.3d 819(2002), in which we held that Governor Symington’s denial of the Board's unanimous recommendation to commute the sentence of Kevin McDonald under the Disproportionality Review Act, 1994 Ariz. Sess. Laws, ch.365, § 1(2d Reg. Sess.) was not an official act and therefore did not require either the governor's signature or the secretary of state's attestation.McDonald I, 198 Ariz. at 593-96, ¶¶ 1226, 12 P.3d at 1197-1200.¹In that case, a person other than Governor Symington had signed the Form Letter and it had not been attested by the secretary of state.McDonald v. Thomas, 202 Ariz. 35, 39, ¶ 6, 40 P.3d 819, 823(2002)("McDonald II")(vacating McDonald I).

¶9On December 7, 2000, noting that it was bound by McDonald I, the Pima County Superior Court denied Ryan's petition for post-conviction relief.Division Two of this Court denied Ryan's petition for relief from the superior court's ruling on June 14, 2001 in a memorandum decision.Ryan filed a petition for review with the Arizona Supreme Court.

¶10On February 19, 2002, the Arizona Supreme Court issued McDonald II, in which it vacated McDonald Iand held that the governor's denial of the Board's unanimous commutation recommendation was an "official act," that was required to be signed by the governor and attested by the secretary of state.McDonald II, 202 Ariz. at 45-46, ¶¶ 31-35, 40 P.3d at 829-30.The court ruled that because the governor's rejection of theBoard's recommendation that McDonald's sentence be commuted was not signed by the governor and attested by the secretary of state, the governor "did not act in the manner required by law and the purported denial did not go into effect."Id. at 46, ¶ 35, 40 P.3d at 830.As a result, McDonald's commutation became automatically effective ninety-one days after the governor received the Board's recommendation.Id.

¶11On July 15, 2002, the Arizona Supreme Court held that because the governor's denial of the Board's recommendation to commute Ryan's sentence was not attested by the secretary of state until eight months after the governor signed it, the denial was not valid.The court vacated this Court's memorandum decision and remanded the matter to the superior court with instructions that Ryan be granted post-conviction relief.

¶12On August 8, 2002, the Board issued a notice that Foster's sentence had been commuted based on the Arizona Supreme Court's ruling in Ryan's case.Ryan and Foster were then both released from prison.

¶13On May 30, 2006, Plaintiffs filed this lawsuit, in which they alleged the Board and the governor had breached their common law and statutory duties and caused damage to Plaintiffs and that the State's conduct constituted false imprisonment and cruel and unusual punishment and deprived Ryan and Foster of their constitutional rights to due process, privacy, and equalprotection.The State moved for summary judgment, arguing that its continued incarceration of Ryan and Foster after the ninety-first day following the governor's receipt of the Board's recommendation was supported by probable cause, that, as a matter of law, the Administrative Procedure Act("the APA"), A.R.S. §§ 41-1001 to-1092.12 (2004& Supp. 2009), did not require the Board to promulgate or review the legal sufficiency of the Form Letter, and that the Board did not violate any of Ryan's and Foster's constitutional rights.In addition, the State asserted that Plaintiffs' claims were barred by their failure to comply with Arizona's notice of claim statute, A.R.S. § 12-821.01(2003).

¶14The superior court granted summary judgment for the State, ruling that Plaintiffs' alleged injuries were not related to the Board's failure to treat the Form Letter as a rule pursuant to the APA, the Board had no authority or obligation to ensure that the governor's signature was timely attested by the secretary of state, the State had probable cause to continue Ryan's and Foster's incarceration, and that the State had not violated Ryan's and Foster's due process and equal protection rights.²The court also found that Plaintiffs' notices of claim were deficient.

¶15Plaintiffs moved for new trial, arguing the summary judgment was not justified by the evidence and was contrary to law.In particular, they asserted that (i) even if the Board had not breached the APA, the governor breached her duty to follow the law and caused damage to Plaintiffs for which tort remedies should be available; (ii) at minimum, the State's failure to release Ryan and Foster after the Arizona Supreme Court issued McDonald IIconstituted false imprisonment³; and (iii)the court's probable cause ruling was factually and legally incorrect.In addition to their pleadings on the motion for new trial, the parties stipulated to provide the court new legal authorities regarding Arizona's notice of claim statute.In response to those authorities, the court withdrew its notice of claim ruling, but, noting that independent, substantive reasons supported its grant of summary judgment, denied the motion for new trial.⁴

¶16Ryan and Foster timely appealed.The State suggests in its answering brief Plaintiffs' notice of appeal was untimely because their motion for a new trial was...